u.s. Department of Justice
Civil Rights Division
Office of Special Counsel for Immigration-Related
Unfair Employment Practices

Look At The Facts
NotAtTheFa~

Your Guide
To Fair Employment

 x Fill out an "Employment Eligibility
Verification" form (Form I-9) for every
new employee, including U.S. citizens.

Introduction

x Allow your employees to show you
documents of their choice-as long as the
documents prove identity and work
eligibility and appear on the USCIS list
of acceptable documents. You may not
ask for specific documents.

This guide is designed to help you, the employer,
understand and comply with the Immigration and
Nationality Act (INA). In short, INA requires you
to hire and/or retain only those persons authorized
to work in the United States. It also requires you
to protect workers against discrimination on the
basis of immigration status, nationality, accent, or
appearance. This guide provides the steps for both
verifying employees' work eligibility and for
ensuring that their civil rights are not violated
when you are making hiring decisions.

x Do not ask for more documents than
required.
For more information on INA’s antidiscrimination
provision, please contact OSC at the Civil Rights
Division--NYA, US. Department of Justice,
950 Pennsylvania Ave., NW
Washington, DC 20530 or call 1-800-255-8155.
(TDD number for the hearing impaired is

First, the guide defines INA fully. It describes
how the law affects you and explains how to
avoid immigration-related employment
discrimination. It outlines easy-to-follow
procedures for hiring employees and explains the
"Employment Eligibility Verification Process"
(Form I-9). The guide includes a list of documents
that are acceptable in determining employment
eligibility. Finally, it provides you with questions
and answers to "tricky" hypothetical situations.

1-800-362-2735.
For a copy of the Handbook for Employers, please
contact U.S. Citizenship and Immigration Services at
www.uscis.gov or call the USCIS National Customer
Service Center at 1-800-375-5283.

If you have further questions about how to comply
with INA, please contact the Office of Special
Counsel (OSC) for Immigration-Related Unfair
Employment Practices of the U.S. Department of
Justice. Another excellent source of information
on this topic is The Handbook for Employers
published by U.S. Citizenship & Immigration
Services (USCIS). To obtain a copy of the
Handbook, please contact USCIS.
Staying in compliance with INA's
antidiscrimination provisions—and avoiding
costly penalties and fines—is a simple matter.
Just "look at the facts, not at the faces" when
making hiring decisions, and follow these three
basic rules:

1

 What is INA?

Noncompliance with the Form 1-9 requirements
may result in sanctions against employers.

The Immigration and Nationality Act (INA) as
amended by the Immigration Reform and Control
Act of 1986 (IRCA) was the first Federal law
making it illegal for employers to knowingly hire
persons who are not authorized to work in the
United States. The law was an attempt to reduce the
stream of undocumented workers entering this
country in search of jobs.

Congress also recognized that these employer
sanctions might discourage you from hiring
certain eligible workers if they looked or sounded
foreign. Therefore, the law also prohibits
discrimination in hiring and firing on the basis of
citizenship status or national origin. Employers
who discriminate may be required to pay fines
and penalties, to hire or rehire the employee, and
to pay back wages.

INA requires that you, as an employer, check
documents to confirm the identity and work
eligibility of all persons hired after November
1986. To remain in compliance, you must—
x Hire only those persons authorized to work
in the United States.
x Ask all new employees to show documents
that establish both identity and work
authorization.
x Complete the USCIS Employment
Eligibility Verification Form I-9 for every
new employee—U.S. citizens and
noncitizens.

2

 How Does INA Affect You?

As an employer:

Types of Immigration-Related Employment
Discrimination:

• INA makes it unlawful for an employer to
knowingly hire, recruit, or refer for a fee any
individual who is not authorized to work in the
United States. It is also unlawful to continue to
employ an undocumented worker or one who
loses authorization to work. (Those hired before
November 6, 1986, do not fall within this
category.)

• Citizenship status discrimination refers to
unequal treatment because of citizenship or
immigration status.
• National origin discrimination refers to
unequal treatment because of nationality, which
includes place of birth, appearance, accent, and
can include language.

• You may hire anyone whose documents prove
identity and work authorization in accordance
with the 1-9 requirements. There are many
documents and combinations of documents that
are acceptable, as long as they appear to be
reasonably genuine. (For a list of acceptable
documents, see the back of the 1-9 form.)

• The Office of Special Counsel (OSC) enforces
the provisions against discrimination. OSC covers
all cases of discrimination based on citizenship
status by employers of four or more employees. It
covers national origin discrimination with
,employers of four to fourteen employees. The
Equal Employment Opportunity Commission has
jurisdiction over employers of 15 or more.

• You must treat all job applicants and employees
equally-whether they are U.S. citizens or
noncitizens. This means you may not discriminate
in hiring, firing, recruiting, or referring for a fee,
nor are you permitted to retaliate against an
employee who has filed a discrimination charge or
participated in an investigation.

3

 What Are INA's I-9 Requirements?
Remember, you are free to hire anyone who can
show documents establishing his or her identity
and authorization to work in the United States.
Any of the documents (or combination of
documents) listed on the back of Form I-9 are
acceptable as long as they appear to be
reasonably genuine.

"I-9" is short for Form I-9, the "Employment
Eligibility Verification" form developed by USCIS
as a way for employers to document the fact that
they are hiring only persons who are authorized to
work in the United States. Over time, the term
“I-9 requirements" has come to describe the entire
process of verifying worker eligibility outlined
out in INA.
As an employer, to comply with INA's I-9
requirements, you must—
x Complete the I-9 form and keep it on file
for at least 3 years from the date of employment or for 1 year after the employee
leaves the job, whichever is later. You
must also make the forms available for
government inspection upon request.
x Verify, on the I-9 form, that you have seen
documents establishing identity and work
authorization for all your new employees—
U.S. citizens and noncitizens alike—hired
after November 6, 1986.
x Accept any valid documents presented to you
by your employee. You may not ask for
more documents than those required and may
not demand to see specific documents, such
as a "green card."
x Remember that work authorization
documents must be renewed on or before
their expiration date and the I-9 form must be
updated—this is also called "reverification."
At this time, you must accept any valid
documents your employee chooses to
present, whether or not they are the
same documents provided initially.
(Note: You don't need to see an identity
document when the I-9 form is updated).
4

 How Can You Avoid Immigration-Related Employment Discrimination?

As an employer, to comply with INA's antidiscrimination provisions, you should-

• Avoid "citizens only" hiring policies or
requiring that applicants have a particular
immigration status. In most cases, these practices
are illegal.

• Let the employee choose which documents to
present, as long as they prove identity and work
authorization and are included in the acceptable
list on the back of the 1-9 form.

• Give out the same job information over the
telephone, and use the same application form for
all applicants.

• Accept documents that appear to be genuine.
• Base all decisions about firing on job
performance and/or behavior, not on appearance,
accent, name, or citizenship status of your
employees.

As an employer, to avoid employment discrimination based on nationality or citizenship status,
you must• Treat all people the same in announcing the job,
taking applications, interviewing, offering the job,
verifying eligibility to work, hiring, and firing.
• Remember that U.S. citizenship, or nationality,
belongs to all individuals born of a U.S. citizen
and all persons born in Puerto Rico, Guam, the
Virgin Islands, Northern Mariana Islands,
American Samoa, and Swains Island. Citizenship
is granted to legal immigrants after they complete
the naturalization process.

5

 What Would You Do?

Did you discriminate in hiring?

4. A Stitch in Time
You gladly hire Lily Chou because she told you
how she beaded sweaters in Taiwan. You are
surprised when she hands you a California
driver's license and an unrestricted Social Security
card for the I-9 form. (Note: Some Social
Security cards are restricted and bear the inscription
"Valid Only with DHS Authorization" or "Not
Valid for Employment.") "Miss Chou," you say,
"I must see a card from DHS."

Yes No

Does Lily Chou have a case against you?

2. The Cooperative Executive
You are president of a company. After hearing
about INA's penalties for hiring undocumented
workers, you issue a memo stating, "Let's go
along with the government on this one. Please
be careful when hiring people who look like
they crossed the border illegally."

Yes No

Read each of the cases below. Circle "Yes" or
"No." Answers are given below.
1. Saving Time
Your crew boss catches you before you start
interviewing people for a job. He says, "Find
out if those two near the door have their 'green
cards' before you waste your time."

Have you committed national origin
discrimination?
Yes No
How about citizenship status discrimination?
Yes No
3. On the Way Out
The rainy spring caused your lettuce harvest to
be less abundant than usual. You need fewer
farm workers than you hired for the season. In
deciding between Héctor Fernández and José
González, you keep Héctor because he is a legal
permanent resident and José, an asylee, only has
a temporary work permit.
Have you committed citizenship status
discrimination?
Yes No

5. Hire American
You manufacture precision cast parts. Ordinarily,
any one of your 12 employees knows someone
who can fill an open position. You tell them
unofficially that you prefer that they bring applicants
who are U.S. citizens—and you fill out the
I-9 form for everyone they bring.
Are you in compliance with INA?
Yes No
6. Temporary Workers
You hire Billy, John, Paul, and Sam just for a
weekend to clean windows in your office building.
You would have hired Ngo except that he
looked too "foreign."
Are you violating the antidiscrimination provisions?
Yes No
Have you committed citizenship status
discrimination?
Yes No

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7. Frenchman With a Fault
Three men apply to manage the front desk of your
four-star hotel. One has more experience than the
other two, but you refuse to hire him because all
he has for the 1-9 form is an unexpired French
passport with an unexpired work authorization
stamp. You ask him for "a driver's license,
anything." The next person has only a temporary
resident card that expires in nine days. That's too
close for comfort. So, you hire the third applicant, who has a valid Canadian driver's license.

8. Useless Regret
The person you chose to run your jacquard loom
was unable to show documentation for the 1-9
form. She said she would send for it, but you
turned her down because you didn't want to get
into as much paperwork as Martha required the
last time. You hired your second choice, a woman
with less experience but valid papers in hand.
Did you violate INA?
Yes

Are you discriminating?
Yes

No

7

No

 Answers
5. Hire American
No, you are not in compliance with INA. Unless
otherwise required by law, you cannot have
"citizens only" hiring policies. If you insist on
doing so, you are engaging in citizenship status
discrimination.

1. Saving Time
Yes. First of all, it is recommended that you wait
until you hire an individual before asking him/her
for papers to verify his/her identity and work
authorization. However, if you ask for papers
ahead of time only from people who appear to be
"foreign," you are discriminating on the basis of
national origin. You must treat all applicants
equally, and, when you review their papers, you
cannot insist on seeing particular documents if
they have already shown you valid documents.
Otherwise, you are engaging in document abuse.

6. Temporary Workers
Yes. You cannot deny work to individuals because
they looked too "foreign." This is national origin
discrimination. And, if you wrongly assumed that
Ngo was unauthorized to work, you have also
committed citizenship status discrimination.
7. Frenchman with a Fault
Yes, you are discriminating. The unexpired
French passport, with an unexpired work authorization attached, is sufficient documentation to
show that the applicant is work authorized. So is
the person with the temporary resident card.
When the card expires in nine days, you can ask
him/her to reverify work authorization in Section
3 of the I-9 form. The third applicant did not
show sufficient documents to establish work
authorization. A Canadian driver's license is a
permissible document to establish identity, but it
does not establish authorization to work in the
United States. Therefore, the applicant would
also need to show you a document from List C.

2. The Cooperative Executive
Yes, you are engaging in both types of discrimination (national origin and citizenship status).
When you ask new hires to fill out the I-9, you
must do so for all new hires. Also, you must treat
all new hires in the same way when verifying
work eligibility, regardless of whether they are
immigrants or members of a particular nationality.

3. On the Way Out
Yes. This is definitely citizenship status discrimination. You cannot fire a protected individual
under INA because he/she has a temporary work
permit as opposed to legal permanent residency. A
protected individual is a U.S. citizen, national,
permanent resident, temporary resident, refugee, or
an asylee. In any event, your firing decision cannot
be based on this factor. Otherwise, your actions will
be considered discriminatory by OSC.

Remember, for reverification purposes, the individual again has the right to show the valid documents of his/her choice. These documents don't
have to be the same ones that he/she presented
initially. If you insist on seeing the same documents, you are engaging in document abuse.

4. A Stitch in Time
Yes. Lily Chou has a very strong case against you.
You should have let her choose which valid
documents to present as proof of her identity and
work authorization. A California driver's license
proves identity and a unrestricted Social Security
card proves work authorization. Your insistence
on seeing a DHS card is called document abuse,
and this is a discriminatory practice.

8. Useless Regret
Probably. Although you may choose not to allow
applicants 3 days to present valid documents, you
must treat all applicants equally. The paperwork
requirements are the same for citizens and noncitizens alike.

8